Why academics need to lobby for copyright reform – now

This speech was given at EPIP 2015 in Glasgow, UK on September 2nd, 2015

I would like to thank CREATe for giving me the opportunity to speak at a conference dedicated to what has proven to be the strongest asset in my personal quest for copyright reform: Scientific evidence. Ian Hargreaves is to be congratulated for showing what can be achieved within the relatively inflexible framework of EU copyright law. I want to focus on what lessons we can draw for reforming that framework, and what role evidence can play.

But the fact that it is surprising that the government listened to academic evidence on copyright also tells us that in many other instances, simply producing evidence has not been enough. We’ve seen this on a European level in the case of the term extension for phonograms, where independent academic evidence was largely ignored.

What the Hargreaves report has shown is that in concert with evidence, political leadership is needed. Identifying encouraging innovation and new business models as the goal of copyright reform in the UK opened the opportunity for economic evidence on how that goal could be achieved.

While Commission president Juncker’s initial plan of “breaking down national silos in copyright” to encourage cross-border trade started out quite similarly, today there is unfortunately no coherent political line within the Commission:

Where Vice-President Ansip has stated that he hates geoblocking, Commissioner Oettinger has accused those advocating an end to geoblocking of “approaching this question as Taliban.” Where Ansip has pointed out that we should not pass laws targeted at a particular company, Oettinger has argued that newspapers are in danger, and we can force Google to subsidize them. In the case of the so-called ancillary copyright for press publishers, academic expert testimony from Germany and Spain, where such laws have spectacularly backfired and if anything strengthened Google’s market position, has done little to convince Commissioner Oettinger to abandon this idea, even though the European Parliament has rejected it twice in recent votes.

Due to the deep disagreements within the Commission on the shape and direction that the EU copyright reform is supposed to take, some fear that the Commission is now engaged in a process of policy-based evidence making.

Evidence-based policy requires good evidence

When evidence is cherry-picked due to conflicting political agendas from the member states, that puts the European Parliament in a difficult position. It’s not that EU politicians don’t want to listen to independent evidence. Nor, as far as I can tell, are we routinely handed briefcases full of money to influence our attention. A more fair description of the problem is that we don’t have time to seek out and read all those papers ourselves. The question we face now is which evidence is how easily available to the institutions and who is in a position to provide that evidence.

Politicians care about easily digestible messages, especially those with clear predictions on jobs and economic growth. While academia may excel at theory and methodology, it’s still industry lobby groups that excel at presentation, at the art of the executive summary.

When a colleague tabled an amendment to my copyright report citing numbers from a study sponsored by the entertainment industry – without indicating the source of the numbers – I asked him whether he wouldn’t prefer using independent evidence. He affirmed, but said he couldn’t find an independent study that made the same point as the industry study – if I could provide him with one, he would quote that one instead.

I’ve seen the effectiveness of industry studies in sneaking into my copyright report, even though their methodology had already been called into question.

Notably, there is a paragraph that points out that IP-intensive industries account for 40 percent of EU economic activity without mentioning that the study in question defines all those industries as “intellectual property intensive” that rely on IP more than the average industry does. So by definition, 50% of industries are “IP-intensive”. Thus, the cited number actually points out that the half of the industry that relies more heavily on IP is less productive than the other, since it accounts for less than half of the economic activity. Hardly an impressive argument for stricter copyright!

But these figures have been presented at so many Brussels conferences and summarised into fact sheets that they are what comes to mind to politicians who are pressed for time.

The role of academic research into public policy options should be to make it easy for politicians to do the right thing. It is not possible for parliaments to operate without outside, easily digestible input. If we are not getting that input from academics, we will get it from industry.

“If politicians don’t get input from academics, they will get it from industry.”Tweet this!

Examples of successful advocacy in the public interest more often than not mimic these tactics and make the economic argument: For example, several library associations have produced economic data to demonstrate their macroeconomic benefit and their priorities for copyright reform have ended up being quite prominently featured in the final version of my report.

The research and education sectors have similarly convincing data that is rarely communicated strategically. For example, according to the impact assessment of the EU’s Horizon 2020 funding programme, €1 of funding from the 7th Framework Programme resulted in an average return of investment to the economy of €13.

The case of freedom of panorama

Progressive copyright reform depends on public attention. The preconditions for that goal are better than ever before. Several issues have already gained significant media attention, most recently freedom of panorama. Here is an example where a copyright issue that could hardly be more arcane nevertheless triggered heated discussions among politicians after receiving a lot of media and constituent attention.

What had happened: The European Parliament’s Legal Affairs Committee had been unable to agree on a compromise on my report’s proposition that the freedom of panorama should apply in all of Europe – that is, the right to reproduce pictures of public buildings or art without permission from the architect. Quite surprisingly, the Committee then adopted the most extreme amendment to my proposal, requesting that such uses should always require permission from the architect, effectively attacking the prevailing conception of the public space in most European countries.

I’ve often been asked which powerful lobby got Members of Parliament to suggest restricting freedom of panorama in the first place. But no such concerted lobbying effort was necessary. In the absence of public attention, politicians had simply relied upon the rule of thumb that they fall back on when they lack a clear policy preference: that stricter copyright was generally desirable and in the best interest of creators.

They were quite surprised when it was first and foremost creators – photographers and filmmakers – who by the hundreds of thousands came out in opposition of this extension of the scope of copyright.

The fact that the two major political groups on the left and right completely abandoned their previous voting behavior in Committee as public attention grew indicates that public controversy encourages Members of Parliament to spend more time actively seeking out evidence and questioning their pre-conceived notions and the recommendations of their in-house experts.

Calling all academics

As the only elected member of the Pirate Party, I have the luxury of being able to justify to my constituents that I don’t spend as much time on Greece or on geopolitical crises as I spend on the relatively low-salience issue of copyright reform. Most other parliamentarians don’t have that luxury.

The main feedback mechanism regarding their work will still be the media. So if academics want their evidence to have the same impact as industry lobby messages, they need to invest into communicating their results to the public.

Most academics are shy about engaging in lobbyism themselves, because their reputation is based on their impartiality and their willingness to question their own biases. But that restraint also makes academics less effective at lobbying on their own behalf.

If we believe that independent evidence leads to better policy-making, if we want evidence to not just be an intellectual exercise, but to have an impact, then the first step before providing that evidence must be advocating for the ability to create new evidence in the first place.

If we consider evidence-based policy making a desirable goal, then we need to take a stand for research and education.

The current copyright regime is undermining our ability to produce evidence. It is time that academics in large numbers – and not just in the field of IP studies – speak up about this issue. Decreasing the very substantial burdens and transaction costs for research and education is one of the declared goals of the Commission’s copyright reform proposal, and the European Parliament has echoed that sentiment in my report.

My copyright report, adopted by an overwhelming majority in the European Parliament, lists goals like:

a new exception for content mining

the harmonisation of exceptions for research and education

simplifying cross-border and online projects

new exceptions for libraries and archives

legal protection of the public domain

protection of exceptions and limitations from contractual override

fully harmonising copyright terms at the lowest levels that currently exist in the EU

a comprehensive set of users’ rights

These reforms are within reach. But the proposals are heavily attacked by scientific publishers. In a situation where scientific publishers are among the most profitable businesses in the world, and universities are not just spending significant proportions of their budgets on licences, but also on navigating and negotiating terms of an overly complex copyright system, resources are unnecessarily diverted from creating sound evidence.

It is up to us to ensure that these reforms that can greatly improve the copyright framework for research and education do not lose momentum because their advocates are not audible in Brussels.

The controversy about a text and data mining exception is essentially about the expansion of copyright law to the privatisation of facts, a trend that is a danger to public research in general.

“Academics need to lobby for copyright reform on their own behalf.”Tweet this!

Academics need to lobby on their own behalf. There is great justification for the neutrality applied to the academic work itself, but it is also necessary to convey to politicians when you need copyright reform in order to be able to continue to do your jobs and to make the best use of taxpayer money.

I hear Ian Hargreaves’ point about the necessity for small, incremental change, and I do believe that as tedious as that task may sound, it is what will eventually lead to success. I did have to face some criticism from within my own party that my review of the InfoSoc directive focused too much on the achievable, on the low-hanging fruit. There was some disappointment that it did not include a call to, and I quote, “burn the Berne convention”. But while accepting that politics is the art of the possible, we should not miss the opportunity to communicate the urgency of copyright reform in the most public and in the clearest terms.

If I, as a Pirate, take that position, nobody will be particularly surprised.
If the academic world, based on scrutiny of the evidence, in a concerted effort, communicates to policy-makers that fundamental reform is needed, I’m sure that the message will be heard.

The Hague Declaration is an example of academics taking an active role in the copyright to enable access to facts, data and ideas for knowledge discovery in the Digital Age.

To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.

My name is Julia, I'm the Pirate in the European Parliament.

One comment

While music licensing is not limited to national or regional interests, polices within certain nations have had overriding effects. In the U.S., due to early challenges of collecting revenue through the roughly 66 music licenses, and by cooperation by individual songwriters early in the history of music licensing, US government rationalized the creation of performing rights organizations to act as intermediary collection agents, and imposed uncommonly harsh restrictions mandating songwriters to be bound by compulsory licenses, inability to withdraw their work, after first permission granted from use by entities disallowing songwriters to organize as a union, and negotiate revenue-percentages within licenses.

U.S. government established and maintained anti-trust, anti-competitive, non-free market construct for the music industry for 70, or more ,years. As a result, it’s been a revolving door of exploitation of small actors, performers and creators, as of late, within an opaque industry, by large, government-entitled non-creative and, – in terms of potential offered through current technological advancements, – non-essential entities.

In the last 15 years, for songwriters, we have seen suppression of independent growth by oligopolistic record labels, big tech corps, along side perpetual prevention of songwriters to organize as a union, thereby forcing them to rely on non-transparent PROs for representation. The slow but now certain total decimation of songwriters’ revenue – today 80% of professional music creators are no longer full-time in the industry. While we can replace one technology with another, there is no replacing the quintessential yet marginalized creators, or their work. So, to maintain that we must take more time to ensure we don’t upset the current system, might be comparable to considering whether, or not , we ought put our seatbelt on after we’ve been in a fatal collision.

Google, Apple, the major record labels, streaming companies – all non-creative entities are not moderating their actions by concerns of sensitivity toward each other or creative actors, and we do no have, nor need more time to size up what’s going on. No other industry in our society has its small yet crucial actors enslaved by such items compulsory licenses, incapacity to negotiate prices, terms, or conditions, where large corporations at rate and royalty court have at every turn, have had the obvious advantage of size, influence, government favour and its precedent, and where has never produced any significant improvement or normalization of conditions for small actors.

The US passed the Sherman Act of 1890 precisely it conceded that by allowing anti-trust, anti-compete and conditions, which by exception still exist for the music industry, we are destined for failure; an outcome of mass exploitation of small actors. We’ve seen it with performers for so many decades, and now creators whose work drives the industry

So, unfortunately, after 70 years of seeing the same types of outcomes, we must again ask ourselves:

Do we believe in a free market for industry or not? If we don’t, then why have it for any industry?

Why not tell Mercedes and Porsche that the price of their cars should not be determined by the marketplace, but by a price court, and we’ll look at the price of a horse and buggy from 120 years ago to determine what the price of a Porsche today should be. And we should all be able to go into IKEA or the highest end furniture store and claim all of the furniture we’d like for free, any time we’d like, because after all who is IKEA or Porsche to determine their own prices?